158 F. 54 | 6th Cir. | 1907
This is a libel against the tug Schenk by the owners of the barge Mary N. Bourke, which was cast away upon the beach of Lake Superior near Marquette, whereby great damage was sustained by the vessel and her cargo. In substance, the libel charges, that the wreck of the Bourke was due to the negligence of the tug while towing her into the harbor of Marquette. The facts necessary to be stated are these: The steamer Schoolcraft bound down Lake Superior, having in tow the barges Nester and Bourke, in the order named, was driven by stress of weather to seek refuge from a gale in the harbor of Marquette. When about one-half mile northeast of the southerly end of the breakwater, she sounded four blasts for a tug. She also slacked her speed, and undertook to shorten 'her tow lines to better control her tów in rounding the southerly end of the
Two grounds have been urged for the condemnation of the Schenk: First, that the slipping of the line from the tow posts was due to a want of care and the proper degree of skill in fastening the line re.-
This prima facie case of negligence the defendants endeavor to meet, first, by the positive testimony of the master and the two linesmen on the Schenk, that the line was fastened in the manner alleged in the libel to be the safe and proper mode; second, by evidence of very unusual conditions The master of the Schenk says that he was standing with his two linesmen on the aft side of the tow posts, between the two posts. “We passed the line between the two tow posts, one turn and a half around the port tow post. I fetched the loose end of the line on the outside of the port tow post. We then ran the line under the cavil on the port side, and turned it right back on the port side of the port tow post, and finished winding it around that tow post with a right-hand turn; the first ttirn and a half being put on with a left-hand turn. After this was done, which is the usual way, and about all that is ever done in doing towing, harbor work, we still further, for the sake of absolute safety, took a heaving line that way lying on deck and was very nearly new, and stopped the end of the tow line.” He adds, however, that he only started the operation of “stopping” the end of the tow line and gave direction to the linemen how to secure it with the heaving line, when his attention was called forward. Cater, one of the linemen, a man who had had an experience of four or five years as a seaman, testified to the same mode of fastening and both Capt. Benson, the master, and Cater, as experts, as to the mode being that usually used on tugs. It is plain that if Cater and Benson were green hands that any fault due to them, or either of them, was not as to the method, but in some want of skill or care in making the fastening in the mode used. Now, there is no
It is the peril of the vessel saved and the circumstances under which assistance was rendered which determines whether the service was salvage service or not. ' Every condition was here present upon which an award for salvage would depend except success. The Rescue v. The George B. Roberts (D. C.) 64 Fed. 139; The City of Puebla (D. C.) 79 Fed. 982; The Reward, 1 Wm. Rob. 177; The Princess
“A salvage service is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress of danger either present or to be reasonably apprehended. A towage service is one which is rendered for the mere purpose of expediting her voyage, without reference to any circumstances of danger.”
But an actual contribution toward the saving of something is an essential to salvage, and here the effort of the Schenk was unsuccessful. This fact would deny her salvage. But does it follow because her attempt to assist in the salvation of the Bourke was not attended with success that she is to be condemned for her loss, even though her efforts were not guided by the best skill and her management not above criticism? A salvor comes under an obligation to use reasonable care for the protection of rescued property, and may lose all right to salvage award, or even render herself affirmatively liable for an independent injury sustained after a successful salvage service. The Mulhouse, 17 Fed. Cas. 962; Serviss v. Ferguson, 84 Fed. 202, 28 C. C. A. 327; The Henry Steers, Jr. (D. C.) 110 Fed. 578, 582; The Bremen (D. C.) 111 Fed. 228; The Duke of Manchester, 2 Wm. Rob. 471; The Neptune, 1 Wm. Rob. 297. No distinguishable injury is attributable to the Schenk.The Bourke was a lost vessel unless the Schenk could save her. She failed. The Bourke’s loss is attributable to the Schenk only in the sense that her voluntary effort to help her was not efficient. That she went out with green linemen may be true; but she could do no better. Her going inefficiently equipped in that respect did not prevent the. Bourke from getting a better service from some other source. The master of the Schoolcraft, her towing steamer, was helpless in the situation, and confesses that he could not have assisted her. There was no other tug in the harbor at all able to face such a sea and wind. That under such circumstances the master of the Schenk went to the rescue, although not properly manned in respect of skillful linemen, is not to be charged against the Schenk. The Henry Steers, Jr., cited above; The Dygden, 1 Notes of Cases, 116. In the Dygden Case, cited above, the rescue was attempted by persons not having the knowledge of seamanship required when there were others ready to render the services having proper skill and equipment. In the opinion it was said:
“When persons offer their services to vessels in distress, and there are no other individuals on the spot capable of rendering more efficient assistance, this court must look with considerable indulgence at their efforts, because, being the only aid that can be procured, and offered in a state of great exigency, every allowance must be made if they are not possessed of adequate knowledge to perform the duty they have undertaken. But different considerations will apply to the conduct of individuals who assume the character of salvors, when there are persons competent to discharge those duties.”
The aid of the Schenk was given under conditions of great emergency when no other aid was possible. There is no suggestion of bad faith or willful misconduct. The most that can be made out is that a
When a distinguishable injury has resulted from the negligence of one undertaking a salvage service, there may be not only forfeiture of all right of salvage, but an affirmative award of damages against the salving vessel. This is as far as the reported cases seem to go. The Henry Steers, Jr. (D. C.) 110 Fed. 578, and cases there cited. But when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct. The Henry Steers, Jr. (D. C.) 110 Fed. 578; The Laura, 14 Wall. 336, 20 L. Ed. 813; The Infanta Maria Theresa, 188 U. S. 283, 289, 23 Sup. Ct. 412, 47 L. Ed. 477.
Salvage service in the public interest should be encouraged. A decree against the Schenk, under the circumstances, would tend to discourage such efforts.
The decree of the court below will be affirmed.
NOTE. — The following is the opinion of Swan, District Judge, on hearing in the trial court:
In form and structure this is a libel for negligent towage. It impleads the tug “in a cause of damage civil and maritime” for alleged derelictions in the performance of a towage service which the tug undertook to render to the schooner Mary N. Bourke about 1 or 2 o’clock a. in. of April 26, 1902, near the entrance of the harbor of Marquette, Mich. There are eight specifications of fault charged against the tug upon which her liability is predicated for the damage occasioned to libelants as owners of the Mary N. Bourke by reason of the damage done to that vessel by the alleged misfeasance and nonfeasance of the S. O. Sehenck. On the theory of the libel the fourth, sixth, seventh, and eighth specifications comprise the gravamen of the case pleaded. These are:
“Fourth. That by reason of the damage of said barge, Mary N. Bourke, as aforesaid, the costs and expenses necessarily incurred in the unloading of a portion of her said cargo, and in the employment of the said wrecking tug Favorite, her crew and outfit, and the service by her performed, and the releasing of said barge, and towing her into Bay Oity, and the making of general repairs occasioned by said stranding, the reshipment of said cargo in other vessels to its point of destination, the damage thereto, the deprivation of the profits and earnings of said barge, which would have otherwise accrued to these libelants. These libelants have sustained damage to the amount of $16,000 and upwards.”
“Sixth. These libelants charge as negligence and faults upon the part of said tug, her owners, and those navigating her and have her in charge, in addition to such negligence and faults as may appear upon the trial of the cause, of which these libelants pray the advantage as follows: (1) That’the said tug*61 was not properly manned and equipped. (2) That the officers and crew of said tug were incompetent. (3) That the officers and crew of said tug were careless and negligent, in that they did not properly fasten the tow line of said tug. (4) That the officers and crew of said tug were careless and negligent, in that they fastened the tow line of said barge Bourke in an unskillful and unseamanship manner. (5) That the officers and crew of said barge were careless, negligent, and unskillful, in that they did not place the tow line of said barge Bourke around or under the cleat, or eavarel which crosses from one tow post of said tug to the other tow post, and that by reason thereof said tow line slipped off said tow post, and left the said barge Bourke adrift.
“Seventh. That the officers and crew were careless and negligent and violated their duty as to said barge Bourke, by abandoning the same, and in that they did not make any effort to get a line to or from her after the tow line had slipped from the said tug’s tow post.
“Eighth. In that those on said tug who made said tow line fast thereon were inexperienced, and not competent to perform the duties which they undertook, under the order of the officers of said tug.”
Condensed, the facts pleaded are briefly: The steamer Schoolcraft on a voyage from Duluth and Ashland for Tonawanda, N. X., towing in the order named the barges George Nester and Mary N. Bourke, all said vessels being lumber laden, and tight, staunch, and strong, and well tackled, appointed and appareled, encountered “a severe northeast gale” about 9 p. m. of Friday, April 25, 1902, when about 35 miles northeast of the port of Marquette. “The gale increased in velocity, and the sea became heavy, whereupon the master of the said barge Schoolcraft, for the purpose of the safety of the said steamer and the said barges and their cargo and crew, headed towards the port of Marquette for shelter,” and about 12:45 a. m. of April 26, 1902, when about one-half a mile from the end of the breakwater of Marquette Harbor, the Schoolcraft sounded her steam whistle as a signal for a tug to come out and take the barges into port. The tug S. C. Schenck came out, and was ordered by the master of the Schoolcraft “to go to the assistance of the barge Mary N." Bourke and to tow her into said harbor.” Obedient to this order, the Schenck immediately proceeded to the Bourke. At or about the same time the Schoolcraft signaled, as aforesaid, the tow post of the Nester, to which was attached the Bourke’s tow line, broke and gave way, thus leaving the Mary N. Bourke adrift, and at the mercy of the northeast gale, which drove her rapidly towards the reef on which she was ultimately cast and wrecked. The Schenck reached the Bourke and took her line, which, it is claimed, was new and of strength and length sufficient to hold that barge under then existing conditions. The libelants charge that through the fault and incompetency of the Schenek’s crew the line was not properly made fast on the tug and slipped after the Schenck had gotten the Bourke under way and before entering the harbor; that thereby the Mary N. Bourke was left helplessly adrift and in a dangerous position by reason of the close proximity of the beach and the existence of the high seas and strong winds which then prevailed, and which was blowing and drifting said barge Botirke towards the beach. It is alleged that there “was ample time and the conditions of said wind and sea was such that the said tug could have come about and again taken the line * * * and safely towed the barge into said harbor, and it was the duty of said barge to do the same.” The tug thereupon returned to the harbor Thereupon the Bourke dropped both anchors, which “partially held her for a time, but, the storm continuing, she soon dragged her anchors and went ashore, stem first, then swung around by reason of the force of the wind and the sea * * * which continued to roll in from the northeast to such an extent and with such force that the said barge pounded on the bottom, breaking her keelson frames, beams, and planks, and strained and warped the said barge, doing great damage thereto, * * * namely, the sum of ten thousand dollars.” The total damages claimed for injury to the vessel, cost of repairs, unloading, and reshipment of cargo, and loss of profits and earnings of the barge are alleged to bo “$15,000 and upwards.” The quotations in the foregoing summary of tho libel are taken from that pleading.
The answer of the claimant corroborates the libel as to the severity of the storm prevailing before and after the Schoolcraft’s signal for aid was Sound
She had lost her green light in collision with the Nester — apparently largely occasioned by the tempestuous conditions — before the tug came out. Nothing was furnished to supply its place. In the heavy fall of sleet and -snow and the darkness it was impossible to locate the Bourke without search. Her tow line, several hundred feet in length, was trailing from her bow and astern of her — a dangerous menace to the tug’s approach and to be avoided with unusual care, as its entanglement in the screw of the tug meant the latter’s disablement and almost certain wreck. The Schenck was the only tug at Marquette which could dare to venture out in the storm. There was no other tug there seaworthy, for the perils of that navigation. It also appears from the proofs of both parties that there was a strike then in force among the deckhands and firemen; that because of that the Schenck was deprived of the services of her usual crew, and could obtain only inexperienced men to fill their places. The Schenck was under no obligation to venture out that night • — owed no duty to the Bourke unless one was east upon her effort to rescue her. Had the Schenck declined to attempt it, stranding and wreck of the Bourke was inevitable. The master of the Schoolcraft admitted that his
If in making the attempt to save the barge the tug was under the ordinary obligations of the towage contract, she was bound only to use ordinary care and skill in the service. While such care and skill is a relative term and varies with conditions, and while the tug would ordinarily be bound to provide a competent crew for the service she undertakes, and the slipping of a tow line in ordinary towage might, if causing injury to the tow, be prima facie evidence of negligence, it would be a harsh measure of responsibility to hold her liable (when competent linemen could not be procured) for the slipping of a line fastened under such unusual and dangerous conditions as then prevailed, or for giving up further attempt to rescue the vessel at the hazard of her own safety. The Clematis, Brown’s Admiralty, 499. But the service which the Schenck was called upon to render was more than mere towage, although its performance would have involved the necessity of towing the barge, if reasonably possible, away from the lee shore. It had every element of a salvage service except that of success. All the conditions were present which would heighten the tug’s reward had she succeeded. No decision has been cited from the American or English courts making an unsuccessful attempt to salve property from an impending peril as cause of action against the persons or the property of the owner or master of the vessel which fails in the attempt. In the English courts the utmost liability entailed by the negligence of a salvor in the rescue of vessel or cargo is the diminution or denial of compensation. The Yan Yean, 5 Aspinwall’s Marine Cases, 135; The Cheerful, 5 Asp. 525; Kennedy’s Law of Civil Salvage, p. 30; The Duke of Manchester, 4 Notes of Oases, 580; The Lockwood, 9 Jurist, 1017. In the federal courts there are cases which affirm that the service of a tug under like conditions to those in evidence in this case are salvage services (The Rescue v. Roberts [D. C.] 64 Fed. 139; The City of Puebla [D. C.] 79 Fed. 982), and deny or reduce salvage for negligence or misconduct.
It is only culpable negligence proximately resulting in injury to the vessel that warrants action against one attempting to save her. The Harry Steers, Jr. (D. C.) 110 Fed. 587, 588. This case distinguishes between want of ordinary care and skill and culpable negligence, and fully reviews the authorities. It seems to be a fair conclusion from the authorities that it is only where a salvor has rescued the vessel from the primary peril to which she was exposed1, and has deliberately or by gross negligence subjected her needlessly and recklessly to injury from a distinct and independent peril, that he loses the character of a salvor, and becomes affirmatively a wrongdoer. It is enough to protect the salvor that he has used reasonable care in his efforts, and a loss subsequently occurring cannot be visited upon him. It would be an extraordinary proposition that a tug attempting the rescue of a vessel in the very jaws of shipwreck should be held liable for even an error in the effort. The Laura, 14 Wall. 342-344, bottom of page.
Upon a careful consideration of all the facts, I am compelled to hold the libelants have failed to make a case against the tug, and that the loss was attributable solely to the conditions, and that the libel must be dismissed, with costs.